Beyond Champagne - Part 2

It is important to recognise that the EU is not unique in providing protection for traditional products in this way and indeed TRIPS requires each member of the WTO to have in place a system for protecting products where their qualities, reputation or characteristics are essentially attributable to their geographic origin. Although the US has introduced special protection for a handful of products including Idaho potatoes and Tennessee whiskey it does not have a general programme in place and has tried instead to promote the trademark system as an acceptable alternative but of course it is not the same and trademark law does not have anything that accommodates the specific attributable to geographic origin test required by TRIPS.

Increasingly we are seeing international treaties making provision for the parties’ geographically protected products although these may not necessarily include blanket recognition. Of particular interest for the TTIP negotiations are those recently concluded between the EU and Canada (CETA) for a comprehensive free trade treaty that is currently awaiting final ratification. In that case a number of compromises were made with general acceptance for alcoholic beverages but more limited coverage for food stuffs through the use of certification marks. Some foodstuffs where a local equivalent had been on sale in substantial quantities for a long time such as parmesan and “Black Forest” ham have been expressly exempted. Other products will be covered only with an additional qualifying description such as Camembert de Normandie rather than just camembert however experience with similar add ons like the “Traditional Cumberland Sausage” suggests that this approach is likely to be fairly worthless. It is clear that the TTIP negotiators are prepared to make some compromises too and the whole list of some 1100 EU protected products are unlikely to receive protection under TTIPS. The UK government did not fight to include any UK products in the list to be protected in CETA and is understood not to be seeking to protect any under TTIPS either. This will not just impact the potential export market for these products but will also mean that these supposedly protected products may face competition from similarly and potentially misleadingly labelled imports too.

Of course TTIP includes many other controversial clauses relating to food and drink. The US is generally believed in Europe to have much less stringent regulation on health and safety and there are concerns that EU regulations may be weakened in a compromise to secure the deal. Areas that have received particular publicity include the chemical washing of meat, the use of antibiotics and hormones as growth promoters, the acceptance of genetically modified crops, reduced port of entry checks and animal welfare. There is also concern about the different approaches to the use of chemicals as pesticides and in packaging materials – the US approach is that a material is acceptable unless proven to be dangerous whereas the EU precautionary approach has been that chemicals must be proven safe before use. The result is that around 80 more chemicals are in general use in these areas in the US than in the EU. It has been even been suggested that the EU regulations on endocrine disrupting chemicals have been watered down as a result of the talks (http://corporateeurope.org/food-and-agriculture/2015/05/toxic-affair-how-chemical-lobby-blocked-action-hormone-disrupting ).

A further area of public concern that does not purely relate to food and drink is the proposed investor – state dispute settlement clause. These arbitration clauses are common in free trade agreements and allow companies to sue governments that introduce legislation contrary to their interests and alleged to be in contravention of the relevant treaty however aggressive action by companies demanding compensation such as over the white labelling of tobacco products in Australia has raised their profile with the press generally acting as if this were something new and suspicious. Certainly there is growing public pressure to readdress this area of the proposed treaty and to substitute proceedings in open court for what the press calls “secret tribunals”. In fact the procedure now being proposed for TTIPS ( and for future EU trade treaties) is a little different with a special court before publically appointed judges. The procedure would be public and there would be opportunities for intervention by interested parties and for an appeal chamber. This general desire for greater transparency has also led to demands for more openness in how treaties of this nature are negotiated although this may in practice be more difficult to accommodate although again the procedure around TTIPS has been generally more open than usual with regular updates and position papers available from the Commission website.

TTIPS is much more wide ranging than just food and drink and it looks as if a number of governments have given little thought to its impact on the food and drink and agricultural sectors in their desire to reach an all-encompassing treaty to the advantage of other industries. This may be reflective of a metropolitan bias in government however the negotiators seem to have misjudged the public mood. The more that has come into the public domain about the treaty the more hostility to it has been voiced. Petitions demanding a rethink or even abandonment of the treaty have been signed around Europe by several million individuals and opposition rallies have been well attended. Members of the various parliaments are being heavily lobbied and so it seems unlikely that this treaty will go through with the ease of the Canadian one. Certainly there will need to be considerably more investment in explaining the potential benefits and assuaging the fears that have been raised if projects of this nature are to get through the democratic process. Politicians are often vocal in their desire for more popular engagement in the issues of the day – they may regret awaking this sleeping giant.